FSSAI Regulations Creates Trouble in Trademark Paradise

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FSSAI Regulation has made an endeavor to effectively regulate all the facets of food and beverage industry. The Recent regulation draft published by FSSAI has laid down new regulation regarding advertisement and claims that are made by the Food Operators.

The Food Safety and Standards Authority of India have published the draft regulation and aims at prescribing set rules and principle for food business operators.

The regulation considers that there is need to curb the use of any vague, misleading words and phrases that are used by the food business operator to sell their product and create a market for their product.

The draft has laid down guidelines so as to seek the establishment of principles and technical criteria on the specific claims that made in the advertisement by the producers, brand owners.

One such criteria will be that all the manufacturers, producers and brand owners will have to obtain prior approval from the FSSAI authorities for any nutritional value they claim the concerning food or beverage to have.

Restriction on Words

FSSAI Draft Regulation has imposed strict restriction upon the use of certain adjectives and has laid down certain fixed conditions where they can be used. Words like Best, Premium, Finest, Real,  traditional and original cannot be used as taglines anymore these words are commonly used while registering trademark.

The words restricted are commonly used while registering mark under the Trademarks act, 1999. Based on the restriction on the words the trademark applicants are going to face a dilemma while registering marks with the word in it.

The conundrum will be most in the case of applicants that have already registered their trademark with the trademark office. They will have to come up with a way to depict features of their product in advertisement in such a way that they do not include the restricted words while selling or promoting the product.

Brands that might face difficulty in advertising after Notice Publication

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Confluence of FSSAI with Trademark Act

Trademark registration is commonly known to serve dual purpose of :

1.      Clearing the confusion among the consumers and also consumer protection from counterfeited goods and services.

2.      Sellers obtain trademark to safeguard their interest whether monetary or otherwise is up to them.

As per restrictions on the words mentioned above the Trademark registration should be made from the date onward as the mark if includes restricted words the applicant will not be able to use the said mark for promoting his product in the market. This would negate the purpose of trademark registration.

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FSSAI- Nutritional Value Format

Proposed General Principles for FBO's

1.      The claims made need to be truthful, unambiguous, meaningful and should be capable of helping the consumer understand the information provided.

2.      The information listed on the label of the product should be made on the same side of the packaging.

3.      The information provided should not be such that it discourage or encourage the consumer to consume excess of  particular food.

4.      The FBO has restriction upon using the FSSAI Logo and licence number for promotion and sale of the product.

5.      The advertisement shall not be used to convey that the said food or beverage is a replacement for a meal.

6.      The information on the label and the advertisement should be consistent with each other.

FBO's need to take Approval

FBO's across India need to obtain approval from the food authority for listing nutritional claims other than the approved list laid out in the regulation.

Procedure to file for Approval

If the person needs to use the following words in advertisement or the label of their product they will have to take prior approval from FSSAI.

Following procedure will have to be followed by FBO's in order make claims that involve Nutritional and health values other than the one prescribed as per the criteria laid down by the draft notification issued recently.

Step-1

The food Business Operator (FBO) will have to submit application with the FSS Authority along with prescribed fees.

Step-2

Based on the application the FSS authorities may appoint a panel or an agency to carry out the prefatory scrutiny of the application that is submitted with them.

Step-3

The applicant will be informed about all the deficiency in the application within 30 days of the application and the applicant will have to provide complete information if any required.

Step-4

Speaking orders will be issued for approval and rejection of the application based on the filed claims.

Based on the acceptance or rejection the applicant use the said claims for advertisement in their marketing communication in respect of articles of food offered for sale , use or consumption.

Documents to submit with FSSAI consisting of the following information :-

• Hard/soft copy of the claim to be made;
• Name of ingredient, nutrient or substance on the basis of which the claim is made;
• Validated Method of analysis of ingredient or substance for which the claim to be made;
• Scientific information or materials substantiating the claim;
• How claim is clear and meaningful and help consumers to comprehend the information provided?
• Any other useful information.